International child abduction
Have you recently moved to Australia with your child after living overseas with your child and the other child’s parent? Is the other parent asking for the child to be returned to them? Is the other parent’s country a Hague convention country? (see here for an updated list of convention countries)
If the answer to these question is yes, then you may expect that the other parent will file an application in the Family Court for the child to be returned, claiming that the child has been wrongly removed to Australia.
When can a parent apply to have a child returned to/from overseas?
In order for the other parent to apply they have to satisfy certain requirements, including:
- That the application was filed within one year of the child’s removal;
- That the child is under 16 years of age;
- That the child is habitually resident in a convention country immediately before the child’s removal to Australia;
- The applying parent has rights of custody in relation to the child and was exercising those rights.
Will a child always have to return to/from overseas?
In the event that the applying parent is able to demonstrate the above, the Court can refuse to make an order that the child be returned if one of the following exceptions are made out:
- The applying parent was not actually exercising right of custody when the child was removed. This can be shown, for example, if you have orders from the other country that give you sole custody or if you have orders from the other country permitting you to relocate to Australia.
- The applying parent has consented or subsequently acquiesced about the child being removed. This may be demonstrated with texts or emails either before, during or after the removal showing some form of an agreement to the relocation. This can include, for example, the other parent making suggestions about the child’s living arrangement in Australia, such as where the child should live or go to school.
- There is a grave risk that the return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
- The child is of an age and degree of maturity at which it is appropriate to take account of his/her views, and the child strongly objects to being returned.
- The return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
Opposing an application for the return of a child under the Hague convention is be technical and complex work. If you believe you are likely to face an application, or your ex partner has already filed one and you need expect advice, get in contact with Ede Family Law for help.
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